27 April 2023

50 years of basic structure doctrine | Only safeguard against majoritarian govt: Sr Advocate Ramachandran

GS-2 Indian Polity: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

The "basic structure" doctrine, which limits Parliament's authority to modify the Constitution's fundamental elements, marks its 50^th anniversary. This doctrine is viewed as the sole protection against a government ruled by a majority. 

Basic Structure Doctrine

• The "basic structure" doctrine is a legal principle that originated in India and restricts the power of the Parliament to modify or alter the fundamental features of the Constitution.
   
• It was first introduced by the Indian Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala in 1973. 
  
  
• The judgment established that the Constitution has a basic structure that cannot be altered even by a constitutional amendment. 
  
  
• The basic structure doctrine implies that the Indian Constitution is not merely a legal document but a living and breathingone that can be adapted to changing times. 
  
  
  1. It recognizes that certain provisions of the Constitution are so fundamental that they cannot be altered even by a constitutional amendment, which requires a two-thirds majority in both houses of the Parliament. 
     
     
  2. The basic structure doctrine is designed to protect these fundamental principles and values from arbitrary changes by a ruling majority or a powerful government.
     
     
• The basic structure doctrine has been used by the Indian judiciary to strike down many constitutional amendments that sought to alter the basic structureof the Constitution. 
  
  
  1. For instance, in 1975, the Indian government under Prime Minister Indira Gandhi introduced the 39^th Constitutional Amendment, which aimed to grant sweeping powers to the Executive and limit the powers of the judiciary. 
     
     
  2. The Indian Supreme Court, however, declared the amendment unconstitutional and against the basic structure of the Constitution.

Features of basic structure doctrine

• Limitations on constitutional amendments: The basic structure doctrine imposes limits on the Parliament's power to amend the Constitution. It ensures that the Parliament cannot alter the Constitution's fundamental features or essential characteristics.
  
  
• Fundamental principles and values: The basic structure doctrine protects fundamental principles and values of the Indian Constitution such as democracy, secularism, federalism, rule of law, independence of the judiciary, and equality.
  
  
• Judicial review: The basic structure doctrine empowers the judiciary to review constitutional amendments and strike them down if they violate the Constitution's basic structure.

Arguments for the basic structure doctrine

• Protects fundamental principles and values: The basic structure doctrine protects fundamental principles and values of the Constitution from being eroded by the Parliament's arbitrary exercise of power.
  
  
• Ensures stability: The basic structure doctrine ensures stability and continuity in the constitutional order by preserving the Constitution's essential characteristics.
  
  
• Protects minority rights: The basic structure doctrine protects minority rights from being trampled by the majority, which may hold a supermajority in the Parliament.
  
  
• Upholds the supremacy of the Constitution: The basic structure doctrine upholds the supremacy of the Constitution over the Parliament and other organs of the state.

Arguments against the basic structure doctrine

• Subjective interpretation: The basic structure doctrine is subject to subjective interpretation by the judiciary, which may lead to inconsistency in its application.
  
  
• Weakens the Parliament: The basic structure doctrine weakens the Parliament's power to amend the Constitution, which may lead to the Parliament being less effective in responding to changing social, economic, and political circumstances.
  
  
• Judicial activism: The basic structure doctrine may lead to judicial activism, where the judiciary oversteps its bounds and encroaches on the powers of the Parliament and the executive.
  
  
• Lack of democratic legitimacy: The basic structure doctrine is seen by some as undemocratic because it limits the power of elected representatives to amend the Constitution.
  
  
• Tyranny of unelected: It is counter-majoritarian in nature and is exercised by unelected judges.
  
  
• Judges exercise power: The judges exercise the power to interpret the Constitution, which is a task that is typically given to elected officials.
  
  
• Restraint by the court: If the court takes the view that the independence of the judiciary and its powers of judicial review are non-negotiable, no one can seriously have a problem with it.

Significance of Basic Structure Doctrine today

• Only safeguard against amendments: The Basic Structure Doctrine is the only safeguard against amendments that could do away with the secular nature of the Constitution.
  
  
• Prevents presidential form of government: With politics becoming increasingly presidential in style, the doctrine could stand in the way of a wholesale switchover to a presidential form of government.
  
  
• Shift in nature of politics and Governance
  1. End of brute majoritarianism: In 2000, the era of strong majorities seemed to have decisively ended, and major constitutional decisions would henceforth be settled only through consensus.
     
     
  2. Purpose during Emergency: Even then, the author had argued that the Basic Structure Doctrine had served a purpose during the Emergency, reminding a still-fledgling democracy of the perils of brute majoritarianism.
     
     
  3. Return to overwhelming majorities: At present, we seem to be back to the era of overwhelming majorities, and the doctrine acts as a protection.

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